ICAC … Conflicts of interest … Journalists as players and recipients of leaks … Unsound assertions in Inspector Levine’s unsatisfactory report on the Cunneen case … It’s important that commissioner Megan Latham not yield in the face of tribal attacks 

Captains and cabin boys of industry, politicians, wheeler dealers, spivs and shonks of all shades have long wanted to see ICAC closed down, or to have its wings seriously slipped. 

At the moment a campaign is in full cry, this time with the corruption fighter’s victims leading the charge, assisted by some of journalism’s great bores in the Murdoch press.

A failed attempt by ICAC to publicly investigate deputy senior crown prosecutor Margaret Cunneen is the vehicle used to denigrate the commission and force its commissioner, former justice Megan Latham, to leave her job. 

Cunneen and interests associated with corrupt former politician Eddie Obeid have been playing the Murdoch press like badly tuned violins.  

The recent report by the ICAC inspector, David Levine, into Operation Hale (Cunneen) gave the anti-ICAC forces further impetus, even though it was a peculiar and unsatisfactory report.  

Levine’s independence became questionable when he attacked ICAC over a statement it issued on April 20, 2015, announcing it had made submissions to the NSW government seeking amendments to the ICAC Act following the High Court’s “narrow construction” of the definition of corruption. 

Levine volunteered this was, “as blustering a statement by a poor loser as it was an improper and dismissive attack on the judgment of the highest court in the land”. 

Further, he warned against, “any knee-jerk legislative reaction that will serve to render the ICAC a second police force or crime commission”. 

At that stage he was preparing an audit of ICAC’s actions in the Cunneen operation. 

Two days later he lobbied premier Mike Baird saying that the government needed to exercise caution and “avoid rushing to judgment as to any necessity to amend the legislation”. 

He also wanted to be heard, “prior to any decision being made to amend the legislation”. 

Fortunately, Baird ignored this advice and promptly announced the government would proceed with legislation to validate ICAC’s earlier corruption findings.  

Commissioner Latham emailed Levine on April 27, 2015, expressing her discomfort with the public perception that the inspector, undertaking an audit (which soon turned into a report), gave every indication that he was in Cunneen’s camp. 

“The more disconcerting aspect of these comments is that you have apparently aligned yourself with those in the community and the media who regard the commission’s investigation of Ms Cunneen as improper and unfounded.”  

At the time, Justinian remarked that there will be no need to read the inspector’s report, because we already know what will be in it. 

Precisely so. 

Levine response was to say he found Latham’s email, “insulting, condescending and to border on insolence”. 

After the High Court’s decision in April, ICAC sent to the NSW DPP, Lloyd Babb, five discs of material gathered during Operation Hale, including 2,274 pages of SMS messages and other communications taken from Cunneen’s mobile phone, dating back 10 years.  

The commission asked whether there was sufficient evidence to charge Cunneen, her son and/or his girlfriend with perverting the course of justice and giving false and misleading evidence. 

Also, the DPP might consider whether Cunneen had breached the ODPP’s code of conduct. 

This was the material that The Australian falsely claimed was “leaked” to the DPP. 

Levine said Babb was placed in an “acute position of conflict of interest” because Cunneen’s phone messages to Telegraph journalist Janet Fife-Yeomans were critical of the DPP. 

There were also text messages between Cunneen and Sydney radio announcer Jason Morrison. 

Cunneen was the prosecutor in the Gilham murder trial, which resulted in the accused’s conviction and imprisonment. Cunneen was unhappy that the conviction was overturned on appeal, which had been handled by Babb himself.  

Cunneen argued that the seizure of her phone by ICAC was illegal and so there should be no disciplinary action. This was what much of the campaign conducted by The Australian sought to achieve. Four days after the inspector’s report was published Cunneen announced that she has been, “completely exonerated of any disciplinary action in this matter, in writing, by the DPP, Lloyd Babb”. 

However, the alleged illegality of the phone seizure remains a hotly contested legal issue.  

Levine’s report says nothing about the appropriateness of the deputy senior crown prosecutor providing information and insights to the Murdoch press, which has signed-up as her personal PR machine. 

So much so that The Australian’s legal affairs scribbler, Chris Merritt, lodged a complaint with Inspector Dave as to whether ICAC’s publication of its May 27 media release, announcing it had provided the evidence gathered during Operation Hale to the DPP, somehow breached the secrecy provisions of the ICAC Act. 

Levine sought legal advice on this pressing question, which turned out to be unhelpful for Merritt, yet it shows the extent to which the journalist was worshipping at the shrine of St. Margaret. 

Levine himself sought to dispel evidence he had leaked information to Crikey journalist Alex Mitchell. 

He explained he was a close personal friend of Mitchell (who also writes for Justinian), but that he disagrees with him on just about every subject of politics, society and history. 

“I have no recollection of informing Mr Mitchell that I had written to the commissioner. It is possible that I did …” 

Other reports from Alex Mitchell about what Inspector Dave is up to also have been incredibly prescient, including a curtain-raiser article as to what would be in the inspector’s Operation Hale report. 

Levine also dwelt on allegations of conflict or bias raised by Cunneen. The prosecutor claimed that the father of her children instructed Megan Latham’s son in Taekwondo and that the commissioner’s personal trainer also lived next door to Cunneen in Willoughby between 2005 and 2011. 

Cunneen told Levine that she and Latham met frequently and they had more than a professional relationship. 

“I feel it appropriate to remark upon what otherwise, fairly objectively can be seen as an acute difficulty arising by reason of the acquaintance of the parties, as-it-were.” 

Despite having just explained the conflicts entangling Lloyd Babb, Levine then says it would have been appropriate for ICAC to refer what it had discovered about Cunneen to the DPP and let him handle it. 

However, Megan Latham disputes this entire section of the inspector’s report. 

Her son has never been instructed in Taekwondo and there have been no “frequent meetings” between Cunneen and the commissioner in Willoughby.  

Levine did not interview Latham, or anyone else from ICAC, as part of the preparation of his report. Procedural fairness was missing because he did not permit Latham to comment on his findings before publication. 

One pressing matter that passed by the commentary box is an even more significant perception of conflict confronting the ODPP. 

Corrupt former politician Eddie Obeid and his sons are suing Commissioner Ipp, ICAC lawyers and staff, plus counsel assisting Geoffrey Watson SC.  

They want orders that the findings of corruption against them were not make according to law and are a nullity (Operations Indus, Jasper, Cyrus, Cabot and Meeka) and that Operations Credo and Spicer be permanently stayed. Further, they claim that the defendants engaged in misfeasance in public office. 

The DPP is still to determine whether proceedings should be commenced against Eddie Obeid arising from corrupt conduct findings in Operations Cabot, Meeka and Jasper and against Moses Obeid in relation to a corrupt conduct finding in Operation Indus. 

So while the DPP is making those determinations, deputy senior crown prosecutor Margaret Cunneen publicly is seen to be in the same camp as the Obeids, as far as the publicity war against ICAC is concerned.

The campaign run by The Australian, on behalf of the Obeids and Cunneen, joins the two together at the hip in a series of stories run concurrently about both parties. 

The Obeids also want to call Cunneen as a witness in support of their case against Ipp and others.  

If Levine had thought to consider this aspect of the fallout from Operation Hale he might have used his trademark expressions, such as “tricky … distasteful … a low point”. 

But he didn’t. 

Levine’s report bristles with indignation. Page upon page is taken up with repeating tedious correspondence he conducted with commissioner Latham. 

His responses to Latham’s replies become increasingly splenetic.

ICAC’s conduct, he says, is “unreasonable, unjust, oppressive maladministration … an abuse of powers … a puzzle … a low point … lacking proportion”. 

The last two recommendations are made on the basis of incomplete information. He did not have Latham’s denial about the alleged “frequent meetings” with Cunneen in Willoughby. And he did not have ICAC’s legal advice that production of evidence by means of a “notice to produce” is permitted under s.22 of the ICAC Act. Yet, the inspector described the seizure of Cunneen’s phone as a “farce”.  

There was much to which Levine did not have access, and even if he did there are significant holes in his report. 

For instance, we don’t know the details of the information that the agency that caught Cunneen on a phone tap brought to ICAC. That agency was improperly revealed in Levine’s report as the Australian Crime Commission. 

We don’t know what came out of the preliminary Operation Hale investigation and interviews. And we don’t know the legal advice about the prospects of prosecution. 

Gavin Silbert, Victoria’s chief prosecutor, was asked to advise on whether there were grounds to launch prosecutions on the basis of Operation Hale’s preliminary findings. His advise remains a state secret. 

The report also did not explore various inconsistencies in Cunneen’s version of events: 

Cunneen is also putting in time schmoozing with politicians. It was reported in  the Financial Review that on Saturday, December 5, she joined the Liberal Party faithful in Manly for drinks with premier Mike Baird and local federal MP, Tony Abbott. 

The newspaper described her as a “curious attendee”. 

Apart from the animus in Levine’s document, there are other problems, not least the inspector’s grasp of English grammar, where he thinks that the word “whom” can be the subject of a verb – e.g. “By whom, I might ask? … I then had, and still have, absolutely no idea about whom she was writing”.  

It’s always dangerous to point out other people grammatical lapses, but with that offence the inspector is a repeat offender. 

What are we left with? – how to write a press release and please keep a sense of proportion. 

ICAC has been accused of leaking to the press, yet it is only main outfit in this farrago of falsehoods that has not leaked.

The premier has referred the report to ICAC’s parliamentary oversight committee, where we’ve already seen the hectoring tactics of right-ring Coalition MPs, whose ideological colleagues have either left parliament, because of their crook conduct, or are sitting on the crossbenches as a result of ICAC’s investigations. 

We can expect more sound and fury from the likes of former bush solicitor Trevor Khan (Nats) and Christian right-winger Damien Tudehope (“Lib”). 

Against the hyperventilation and hostility, Commissioner Latham should continue to stare down the attacks and not budge an inch.